Religious discrimination in insurance

[Volokh, Eugene]

        This, I think, is one classic reason why people worry about the
"slippery slope":  As the legal system allows more and more exceptions, even
limited and appealing ones, from a general rule (here freedom of contract),
the exceptions begin to look more and more like the rule; and new proposed
exceptions now begin to seem harder to resist.

        And yet I think they should be resisted.  It seems to me quite wrong
for people to shift the burden of their voluntary actions on others.  Want
to smoke?  Fine, but don't ask me to pay for the costs you inflict on
yourself.  In fact, I think many health insurance policies do consider
whether the person is a smoker, and they certainly should.  Want to impose
burdens on yourself as a result of your religious beliefs?  Go ahead, and I
might even admire the strength of your convictions when these burdens
jeopardize your life or health -- but I don't admire your asking others to
bear part of the cost for your martyrdom.

        Race and sex classifications are different; I'm not sure that I
endorse the laws that prohibit actuarially sound race and sex
classifications in insurance -- just as I would oppose laws that prohibit
actuarially sound age classifications in insurance -- but they rest on
justifications that apply, I think, only in limited cases.  First, they do
not involve shifting the burden of one's voluntary actions onto others;
no-one chooses their race or sex.  Second, they prohibit classifying people
in ways that are seen as injurious to people's dignity, and as unfairly
generalizing about people's behavior based on characteristics over which
they have no control.  (Part of my disagreement with applying
antidiscrimination norms to insurance is that I think that such
generalizations, while generally improper in other areas, should not be seen
as improper in insurance, a field that's all about generalizing about
people's behavior based on a variety of characteristics, over many of which
they have no control; but I realize that the legal system has disagreed with
me on this matter, because the "no generalizations based on race and sex"
norm is so strong.)

        Here, the insurance companies are not asking for the right to
generalize about people, even based on their voluntarily chosen
characteristics; they're not saying that they want to charge higher rates to
Jehovah's Witnesses or lower rates to the abstemious but not
anti-medical-technology Seventh Day Adventists.  They are just saying that
they will pay for this sort of health procedure and not another, more
expensive, sort.  It seems to me that they should be entitled to do so.

        As to the First Amendment:  I'm not sure that it should be
*unconstitutional* to require insurance companies to provide expensive
religious accommodations (and again I am operating on the hypothesis that
accommodating this procedure would be materially more expensive -- if it's
not, then the analysis might be different); I'm just saying that no such
requirement ought to be imposed, as a practical and an ethical matter.

        Nonetheless, Thornton v. Caldor suggests, contrary to Ed's and my
intuitions, that such a mandated accommodation may in fact be struck down on
Establishment Clause grounds.  Recall that Thornton held that a state could
not categorically obligate all private employers to accommodate their
employees' desires not to work on their Sabbath.  Of course, the state could
obligate them to accommodate their employees' secular demands (family leave,
pregnancy leave, etc.); but where it came to accommodating specifically
religious beliefs, the Court held that the Establishment Clause limited the
state's power, at least unless the accommodation requirement was limited
only to reasonable accommodations, as in Title VII.  Perhaps the wrong
constitutional conclusion, but still the Court's holding (and an 8-1
holding, if I recall correctly).

        Eugene

Ed Richards writes:

> Potential extra expense is an issue, and I assume that there will be some
> extra expense.  Yet weren't the civil rights laws found to prevent life
> insurance companies from charging blacks more for life insurance, despite
> their higher actuarial risk, and to prevent charging women more for
> pensions, despite their longer life expectancy?  Group health insurance
> shelters all sorts of elective behavior - I certainly resent paying more
> for smoker's ill health, and that is more of an elective choice than
> religion.  As a matter of principle, once you buy into the averaging of
> insurance, the exception game gets pretty difficult - does the 1st
> amendment mean that I can deny care to Witness but not to the smoker?
>
> Ed
>
>       -----Original Message-----
>       From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
>       Sent: Thursday, January 24, 2002 8:39 PM
>       To: RELIGIONLAW at listserv.ucla.edu
>       Subject: Re: Religious discrimination in insurance
>
>
>
>               I'm just curious, not as a doctrinal matter (the question
> there is whether insurance antidiscrimination laws have a "reasonable
> accommodation" provision, and I doubt that they do) but as a policy
> matter:  Is the bloodless surgery more expensive than normal surgery?
>
>               I for one wouldn't be wild about having to pay, as a
> policyholder, for the extra cost occasioned by someone else's religious
> beliefs, and I'd be reluctant to see the law impose such a burden.  Query
> whether such a law, incidentally, would be constitutional unless it had
> some requirement that the religious care be not materially more expensive
> (see Thornton v. Caldor).  I don't think such a requirement should be
> unconstitutional, but I also don't think it would be right as a policy
> matter.
>
>               Eugene
>
>       -----Original Message-----
>       From:   Richards, Edward P. [SMTP:RichardsE at UMKC.EDU]
>       Sent:   Thursday, January 24, 2002 6:15 PM
>       To:     RELIGIONLAW at listserv.ucla.edu
>       Subject:        Religious discrimination in insurance
>
>       Just had a question from a lawyer about an interesting health law
> case.  A Jehovah's Witness has commercial health insurance.  He needs
> surgery, but the plan refuses to authorize care at a medical center that
> offers bloodless surgery.  (There are well established but not widely
> available techniques to reduce the chance of needing blood in surgery,
> which is important if the patient has refused blood.)  The plans says it
> is providing standard of care and does not need to accommodate the
> patient's religious beliefs.  Since the plan's care is no care as far as
> the patient is concerned, he has to pay for the bloodless procedure
> himself.
>
>       Does this raise any issues under the civil rights laws?
>
>       Thanks!
>
>       Ed
>
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